Chap 4: Succession

  • Succession is either legal or testamentary.
    • By legal succession is meant that the law should distribute the goods of the deceased to those to whom it is to be presumed the person himself would have chosen that they should be given, according to some lawyers2.
    • But this supposes that testamentary succession, or a distribution of the goods according to the will of the deceased, was previous to legal succession, which is contrary to experience.
  • In a rude period, a man had scarce the full property of his goods during his lifetime.
    • He could not have had a power to dispose of them after his death.
  • In all nations, the dead person’s relatives succeeded long before testaments were invented.
    • Testamentary succession were first introduced by:
      • The twelve tables at Rome, and
      • the laws of Solon at Athens 3;
    • But long before this, there was legal succession in Rome and Athens.
  • The claim of the heir of blood is always thought the preferable one.
    • But this claim is never founded on the presumed will of the deceased.
  • The succession in the earliest times were more founded on the connection of goods than of persons4.
    • Father and sons lived [114] together.
    • They were joint acquirers of any property they had, when the father died the children had a joint right to the goods, not so much on account of their relation to the father as on account of the labour they had bestowed on acquiring them.
    • The mother and the children would therefore continue in possession.
  • Among the Romans, the wife was considered as a daughter.
    • She had her share accordingly.
    • If any of the children were settled out of the family or were emancipated, they had no share in the succession1, because they ceased to cooperate with the rest in acquiring the goods.
  • When families in this way lived together, it was necessary to prohibit marriages of cousins.
  • When men’s2 sons and grandsons lived in the same house, if all succeeded equally it was called successio secundum capita, but if the grandson succeeded only to his father’s part it was secundum stirpes.
  • If a man had three sons who were all dead, but the oldest had left behind him one son, the second two, and [the] third three, by the former rule, on the death of their grandfather, each would have a sixth;
  • but by the latter, the son of the oldest would have a third alone, the two sons of the second a third between them, and the three sons of the third a third among them.
  • The grandsons were as it were the representatives of their father.
  • The right of representation is the same with the successio secundum stirpes.
  • Among the Romans the right of representation was introduced in favour of the strong, and in prejudice of the weak, but in Britain [it] is the contrary3.

 

  • Among the Romans, a son could not succeed to the mother when she died because as she was considered [115] as a daughter of the family, everything she had belonged to the husband.
    • If the husband died first, the wife shared with her children, and then went home to her father’s house, and succeeded anew to her father.
  • But in times of more refinement under the emperors, the mother could succeed to the son, and the son to the mother1.
  • Anciently, when a son died, no person succeeded to him, because he and everything he had belonged to his father.
  • Caesar first made a law that a son might possess as his own whatever he got in war, or acquired by the liberal arts2.

 

  • Three classes of men may succeed, ascendants, descendants, and collaterals.
  • Those in an upper line may succeed to those in a lower.
  • Those in a lower to those in an upper line, or those of the same line to one another.
  • Collateral succession at first extended only to the nearest in blood3
  • If he refused it the goods belonged to the public4, but afterwards the praetor extended it to the seventh in blood5.
  • When a brother died and another succeeded, it was in consequence of their connection with the father, who is the common stock, and therefore succession of ascendants must have been prior to that of collaterals.
  • But the right of descendants is stronger than either of these, because the son’s claim on the father is evidently more strong than that of the father on the son.
  • The principles of succession then in moveables are founded on the community of goods which took place anciently in families.

 

  • The different state of families in our country makes a considerable difference between our6 law and that of the Romans.
  • Among us, the wife is much more considerable than a daughter.
    • Accordingly the wife succeeds to more. [116]
  • When the husband dies, the goods are supposed to be divided into three equal parts.
    • One is supposed to belong to the deceased husband
    • One to the wife
    • One to the children:
      • However, the husband can dispose of his part by testament, which the wife cannot.
  • A forisfamiliated son is not in the same condition with an emancipated son among the Romans.
    • He can succeed with his brothers;
    • only if he has got a portion he must bring it into the common stock at his father’s death.
  • Grandchildren do not succeed in place of their deceased father, as among the Romans.
  • However, the English law admits of representation.
    • It prefers ascendants, if males, to collaterals.

 

Indivisible Inheritance

  • Indivisible inheritance was introduced by the feudal law.
  • When the nations that conquered the Roman Empire settled in the West of Europe, an inequality of fortune necessarily ensued.
    • The great had no way of spending their fortunes but by hospitality.
      • They necessarily acquired prodigious influence over their vassals1.
      • They gave out their lands merely to maintain their dependents.
      • The Saxon word ‘farm’ signifies victuals2.

 

  • The chieftains were the sole administrators of justice in their own territories, through their influence.
    • It was the interest of government to authorize this jurisdiction, as it was the only method of preserving peace, and as the superior was the leader both in peace and war.
  • As late as 1745, this power remained in the Highlands of Scotland
    • Some gentlemen could bring several hundreds of men into the field3.
  • These lords had no other way to dispose of their lands.
    • So they gave some of them as munera, which were revocable at their pleasure [117].
    • They gave others as beneficia, which continued during life and returned to the lord after their decease1.

 

  • The benefices of the clergy seem to have been on this foundation and have retained the name.
    • Through this, the lords secured the fidelity of their vassals.
  • As benefices were for life, the property of them naturally came to be extended to the son of the deceased tenant, and by degrees the tenures became hereditary and were called feudal; thus the tenant became more independent.
  • When any chieftain died and left his son a minor, the king appointed a leader to the vassals during the minority, and appropriated the profits and emoluments arising from the lands to his own use.
    • When a female succeeded, the lord had the power of disposing of her in marriage, as it was reasonable that he should name the husband who was to be his own vassal.
    • As the lord was guardian of the heir male, it was also thought unreasonable that he should marry without his consent.
    • As the feudal lord possessed the lands during a minority, before the minor could recover his estate, he was obliged to pay what is called a relief.
  • This was introduced by the court of the king or lord, before which the minor was obliged to swear fealty before he could recover his estate.
  • He was also obliged to promise homage to his superior before he could enter on possession. Thus they held their lands of the superior for military service, homage, fealty, wardship, marriage, relief, etc.
  • Allodial estates were free from all such services; but as it was for security of property to hold of some great man who could protect the proprietor from violence, the generality of estates became feudal.
  • For the same reason men possessed of great estates paid feu and swore fealty to the sovereign2.

 

  • It must have been a very difficult to secure property, especially if it was [118] small, in those early times.
    • Therefore, nothing could have a worse consequence than the division of estates.
  • The consequences of dividing the kingdom of France were sufficiently experienced.
    • It would have been still worse in private estates.
  • However, on account of the opposition from the rest of the sons, it was long before the right of primogeniture or the indivisibility of estates could be introduced.
    • In Germany, it did not fully take place before the last century.
  • But as the circumstances necessarily required it, estates were at last made indivisible.
    • Since a single person was to be preferred, the oldest son would naturally be the person.
  • This legal preference must be given for some quality that is altogether indisputable.
    • If it were to be given to wisdom or valour, there might be great disputes.
    • But among brothers there can be [no] contest who is the oldest.
  • In the beginnings of society age itself is very much respected.
  • To this day, among the Tartars, the king is not succeeded by his son, but by that one of the royal family who is oldest.

 

  • When primogeniture was introduced it would naturally occasion succession by representation for the following reason:
    • the younger brothers at first would think it hard that their older brother should be preferred to them, and if he died they would still think it harder that his son, an infant, should come in before them; accordingly in many places this has been disputed in single combat1.
  • Bruce and Balliol disputed on this account.
    • According to our notions, Balliol had the best right, for he was descended from the oldest daughter, though Bruce was a step nearer the common stock.
  • The difficulty of introducing this at first gave rise to a new species of succession.
    • Through it, when a father died, his estate went to his eldest son.
    • But if he died while his children [119] were minors, or if he died while his father was alive, his brother, not his sons, succeeded.
  • This was attended with one inconvenience, that on the death of the youngest his sons were preferred to those of the other brothers. By the Roman law a grandson succeeded only to his father’s part: he might succeed as a son, but not as an oldest son.
  • The brothers naturally thought that they were nearer the father than any grandson he could have;
  • But as this was a hardship to the brother’s claim, so it was also a hardship to cut off the reasonable expectation which the grandson had if his father had lived.
  • This last circumstance afterwards gave occasion to lineal succession.
  • When this difficulty is got over there is little dispute about collateral succession.
  • In feudal lordships a woman could not succeed, as she was incapable of performing military services.
  • But they could succeed to lands where there was required any other kind of service1.
  • There are two kinds of fiefs:
    1. Masculine
      • France is an example of this
        • No woman can succeed.
    2. Feminine.
      • England is an example of this.

 

  • There are some niceties whimsical enough in the Scotch law with regard to succession of collaterals.
    • If the second brother has an estate and dies, it goes to the third and not to the oldest, who is supposed to have been sufficiently provided for.
    • Conquest2 on the contrary ascends, but it does not go to the oldest, but to the immediately older brother.
  • By the English law, the old brother excludes the whole blood from one half of the estate by conquest, in other countries the preference is not so great3.

[120]

  • The right of primogeniture hinders agriculture1.
    • If the whole estate were divided among the sons, each one would improve his own part better than one can improve the whole.
    • besides, tenants never cultivate a farm so well as if it were their own property.
  • Primogeniture is also hurtful to the family.
    • While it provides for one, it suffers all the rest in a few generations to be reduced to beggary2.
  • However, it has one advantage in succession to a monarchy:
    • it prevents all dangerous rivalships among the brothers.

 

  • There are some other kinds of succession that take place, or have taken place in several countries.
    • Thus in some countries the youngest son succeeds to the father.
    • There is something like this among our tenants to this day: the older sons as they grow up are provided for, and the youngest, remaining with the father, succeeds to him.

 

Testamentary Succession

  • There is no extension of property so great as this.
    • Therefore it was long before it could be introduced.
  • It was very natural to give a man a right to dispose of his property while he lived.
    • But a testament supposes him to dispose of a right when, properly speaking, he can have none himself.
  • He cannot be said to transfer his right, for the heir has no right in consequence of the testament till after the testator himself have none.
  • Puffendorf whimsically accounts for this from the immortality of the soul3.
  • At Rome, the right of making testaments was introduced gradually.
  • At first it was only allowed, and that too after the consent [121] of the fellow citizens was asked and obtained, to childless people.
  • This was much the same with adopting children1.
  • When a person died and wanted to leave his estate to a son in exile, he would naturally request his neighbours not to take it from him after his own death.
  • This request would be regarded, not so much on account of its being his will, as from a kind of piety for the dead.
  • We naturally find a pleasure in remembering the last words of a friend and in executing his last injunctions.
    • The solemnity of the occasion deeply impresses the mind.
    • Besides, we enter as it were into his dead body, and conceive what our living souls would feel if they were joined with his body, and how much we would be distressed to see our last injunctions not performed2.
    • Such sentiments naturally inclined men to extend property a little farther than a man’s lifetime.

 

  • This was the foundation of testamentary succession.
    • It was a sort of impiety not to comply with the father’s desire.
    • Though it was no injury to deprive the heir of the estate, as there was no law established in his favour, and as his being in exile cut off all reasonable expectation of succeeding.
  • The injury is conceived to be done to the dead person, as we enter into what would be his sentiments were he to live again.
    • This practice is a considerable refinement in humanity.
    • It was never practised in a rude nation.
  • Before the twelve tables, no Roman had a right to make a will3.
  • Our Saxon ancestors had no right to dispose of their lands by testament4
  • In the history of the Old Testament we hear of no such practice.
  • Piety for the dead could take [122] place only with regard to the immediate successor.
  • Therefore at first the right of making testaments extended no further, unless in case the person in whose favour it was made should refuse to succeed, in which case another might be appointed.
  • This was a further extent of the right.
  • Again, if a man died and left his sister’s1 son heir to him, that the estate might not go to foreign relations, the testator was allowed to say that if the pupil die at a certain age, the estate shall go to such another person.
  • This was called pupillar substitution2.
    • Thus property was still further extended.

 

  • The greatest of all extensions of property is that by entails.
    • To give a man power over his property after his death is very considerable.
    • But it is nothing to an extension of this power to the end of the world.
  • In the beginnings of society, the state of families is very different from what it is presently.
  • The wife was subject to the husband and at the best only on the footing of a daughter.
    • She seldom made any addition to the husband’s estate unless by her own industry.
  • But when female succession took place, and women came to be possessed of fortunes, they would not marry without a previous capitulation by which they insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death.
  • By this arose a new species of marriage from agreement which rendered the parties equally independent3
  • This great change in domestic affairs would naturally at first be complained of.
  • As the ultimate cause of it was the succession of females, they would try to prevent their opulence.
  • On this account, a law was made at Rome bringing matters to their ancient footing, called the Voconian law.
    • To elude this law, a fidei commissum was invented.
    • by which, when [123] a man had a mind to leave his estate to a person whom the law would not allow, [he left it to someone else] and took his solemn promise that he would transfer it to the person for whom he intended it.
  • Augustus made a law obliging the trustee always to restore it.
    • He appointed a fidei-commissary praetor for that purpose1.
    • The person to2 whom the estate was left was called heres fiduciarius.
    • The person to whom it was to be restored was called fidei commissarius.
  • Thus property was extended beyond the first successor.
  • When this step was gained they easily advanced further and introduced entails.

 

  • Entails were first introduced into the modern law by the ecclesiastics, whose education made them acquainted with the Roman customs3.
  • They were the preachers of this doctrine.
    • They naturally became the explainers and executors of wills till Theodosius and Valentinian4 took it from them.
    • In England, William the Conqueror restored it to the ecclesiastics5.

 

  • By British customs, 6 a man, if he leave a wife and children, can dispose only of a third by testament.
    • If he leaves a wife without children, only a half.
  • Lands after the introduction of the feudal system could only be disposed of by testament in the same way with military services, by the consent of the superior.
  • Originally in England there were no entails by will, but by [124] tenure.
  • A man held an estate for himself and his heirs, but if he had no heirs he could not alienate it, it returned to the superior.
  • But if he had heirs he could alienate it, and thus the lord was deprived of his right of reversion.
  • A law1 was afterwards made to secure this.

 

  • Perpetual entails are the most absurd of them all.
    • In them, the principle of testamentary succession cannot happen.
  • Piety to the dead can only take place when their memory is fresh in the minds of men: a power to dispose of estates forever is manifestly absurd.
  • The earth and its fullness belongs to every generation.
    • The preceding one can have no right to bind it up from posterity2
    • Such extension of property is quite unnatural.
  • The insensible progress of entails was owing to their not knowing how far the right of the dead might extend, if they had any at all.
    • The utmost extent of entails should be to those who are alive at the person’s death, for he can have no affection to those who are unborn.
  • Entails are disadvantageous to the country’s improvement.
    • Those lands where they have never taken place are always best cultivated.
      • Heirs of entailed estates have it not in their view to cultivate lands.
      • Often they are not able to do it.
  • A man who buys land has this entirely in view.
  • Generally, the new purchasers are the best cultivators.

 

 

 


 

5. Fifth way of acquiring Property: Voluntary Transference

  • Two things are required in voluntary transference:
    1. A declaration of the intention of:
      1. the person who transfers, and
      2. him to whom it is transferred:
    2. The actual delivery of the thing.
  • In most cases, the first of these is not binding without the latter, because there is no right without possession.
    • If a man borrowed a thing and afterwards bought it, there is no need of delivery because he already has it.
  • Before possession you can have no right to the thing, though you may have a right to make the man keep his promise or contract.
    • If I buy a horse from a man, and before delivery he sell him to a third person, I cannot demand the horse from the possessor, but only from the person who sold him.
  • But if he has been delivered I can claim him from any person.
  • Property therefore cannot be transferred without tradition or delivery.
  • Grotius justly observes that in the transference of a pledge there is no need of delivery, because the thing is already in the man’s possession1.
  • In France, if a man declare his purpose to make a donation, and die before the delivery, the donation goes to the heir.
    • This was also a custom among the Wisigoths.
  • In transferring the property of lands and other large objects, it is not easy to determine what gives possession.
    • As there cannot be an actual delivery, in Britain a symbolical delivery is used.
      • An ear or sheaf of corn signifies the whole field
      • A stone and turf, the estate to the centre of the earth
      • The keys of the door, the house.
  • By the Scotch law, if there be a transference of several estates, the purchaser must be infeft in each.
  • By the English law infeftment in one [126] serves for all1 when done in presence of the county court2.
  • In Scotland it must be done on the land:
    • it is enough in England if it be done in view of it.
    • Besides delivery a charter or writing, showing on what terms the transference was made, is also requisite for security.
  • Until the custom was abolished by a late statute, no vassal or possessor had a right of alienating his estate without the consent of the superior3.
  • As he held it for military service, it was requisite that the estate should be resigned to the superior, who resigned it to the purchaser, as it was proper that his vassal should be of his own choosing.
  • Afterwards, however, it became necessary to accept of creditors.
    • This was often used as a handle to elude the law.
  • The seller gave a bond for a sum of borrowed money without any mention that it was a sale, by which means the lands were adjudged to the creditor, and the lord was obliged to accept of him as his vassal.
  • Similarly, as the tenant was liable to oppression from a new superior, the lord could not dispose of his estate without consent of his vassal.
  • If therefore either of them alienated any part of their estates without the other’s consent, his right was forfeited.

 

  • The duty of vassals to their lords continued longer in Scotland than in England because of the difference of their government.
    • England all along favoured democracy
    • Scotland favoured aristocracy.
  • After society was fully established, there was no occasion for mutual consent, because the tenant was protected by law, whatever the lord was.

 

  • During the civil wars4 a new sort of delivery took place.
  • When a person transferred his estate to another [127] for his own use it was not affected by forfeiture.
  • The person to whom it was transferred was considered as the bailiff.
    • He took possession in the other’s name.

 


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